<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL <br /> FORUM AT BANGALORE (URBAN)<br /> <br /> 14th OCTOBER 2008<br /> <br /> <br /> PRESENT:- SRI.A.M.BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NOs.1666/2008 & 1667/2008<br /> <br /> <br /> COMPLAINT NO.1666/2008COMPLAINANTCOMPLAINT NO.1667/2008COMPLAINANT Smt.Jayanthi P.LW/o Harinath,Aged about 34 years,Residing at No.560, 9th Cross, 7th Block, Jayanagar,Bangalore – 560 082.Smt.Komalamurthy P.LW/o P.R.L.Murthy,Aged about 60 years,Residing at No.560, 9th Cross, 7th Block, Jayanagar,Bangalore – 560 082.Advocate (Sri.Harikrishna S.Holla)<br /> OPPOSITE PARTIES V/s1. M/s.Bangalore Development Authority,T. Chowdaiah Road,Bangalore – 560 020.Represented by its Commissioner.Advocate(Sri.Prakash Rao K)2. M/s. Bhavani Housing Co-operative Society Ltd., (R) # 239 (Upstair)Near Uma Theatre,Bull Temple Road,Chamarajpet,Bangalore – 560 018.<br /> <br /> O R D E R<br /> <br /> These are the two complaints filed U/s. 12 of the Consumer Protection Act of 1986 by the complainants, seeking direction to the Opposite Party’s (herein after called as O.P) to pay a sum of Rs.20,00,000/- as compensation and for such other relief’s on an allegations of deficiency in service. <br /> As the opposite parties in both the complaints are common, the question involved, relief claimed being same, in the interest of justice, in order to avoid repetition of facts and multiciplity of reasoning, these two cases stand disposed of by this common order.<br /> The brief averments, as could be seen from the contents of the complaints, are as under:<br /> 2. Each one of these complainants being lured away with the advertisement and propaganda issued by the OP.2 who claims to be the house building co-operative society engaged in formation of residential layouts in and around Bangalore consisting of sites of various dimensions thought of purchasing a site of their choice in the layout formed by the OP.2 that too the site measuring 30’ x 45’. OP.2 accepted the membership of these two complainants and allotted site No.80 to complainant Smt.Jayanthi P.L (Complaint No.1666/2008) and site No.81 to the complainant Smt.Komalamurthy P.L (Complaint No.1667/2008) by collecting Rs.1,29,600/- from each one of these complainants and executed the sale deed on 13.12.1996. It is alleged by the complainants that OP.2 issued the P.C on 10.10.1997 and made these complainants to believe that the layout is duly approved by the statutory authority like OP.1. Having trusted the words of the OP.2 complainants invested their hard earned money. When complainants approached OP.1 for change of katha in their favour on 06.02.2003 they came to know that their sites are not approved by the OP.1 in the layout formed by the OP.2 and OP.1 refused to change the katha. Thereafter each one of these complainants were constrained to file Writ Petition before the Hon’ble High Court of Karnataka. Hon’ble High Court of Karnataka was pleased to issue the direction to OP.1 to change katha. OP.1 failed to comply. That is why complainants filed contempt proceedings before the High Court of Karnataka. The hostile attitude of the OP’s made them to suffer both mental agony and financial loss. Under the circumstances they are advised to file these complaints and sought for the reliefs accordingly.<br /> <br /> 3. On admission and registration of the complaint, notices were sent to the OP. Service of notice to OP.2 is held sufficient under sec.28 A of C.P Act. The absence of the OP.2 does not appear to be as bona fide and reasonable. Hence OP.2 is placed Ex-parte.<br /> <br /> On appearance, OP.1 filed the version denying all the allegations made by the complainants in toto. According to OP.1 complainants have not availed their services as contemplated. It has not allotted any site to the complainants in their approved layout. When complainants have not availed the services their allegations of deficiency in service is baseless. The entire complaint is devoid of merits. If the OP.2 has practiced some kind of fraud on them stating that its layout is duly approved by the OP.1 including the sites of these complainants it is for the complainant to redress their grievance if any against OP.2 and not against OP.1. Though complainants are aware of the fact that the contempt proceedings filed before the Hon’ble High Court of Karnataka were dropped but still with ulterior motive they have again filed this false complaint against OP.1. Among these grounds, OP.1 prayed for the dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments, the complainants filed their affidavit evidence and produced their documents. OP.1 has also filed the affidavit evidence and produced the documents. OP.2 did not participate in the proceedings. Then the arguments were heard.<br /> <br /> 5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainants have Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> <br /> Point No. 2 :- If so, whether the complainants are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative in part<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> <br /> 7. At the outset it is not at dispute that these complainants become the member of the OP.2 house building co-operative society and opted to purchase the site measuring 30’ x 45’ in the layout floated by the OP.2. According to the complainants OP.2 assured them that their layout is duly approved by the OP.1. Complainants trusted the words of OP.2 then paid an amount of Rs.1,29,600/- each towards the cost of the site. OP accepted the said amount and allotted site No.80 to Smt.Jayanthi P.L and site No.81 to Smt.Komalamurthy.<br /> <br /> 8. It is further contended by the complainants that OP.2 executed the registered sale deed with respect to the sites on 13.12.1996. Copy of the sale deed are produced. It is further contended that OP.2 issued the P.C on 10.10.1997 with respect to the said sites. Copy of the P.C are also produced. Now it is the grievance of the complainants that when they approached the OP.1 for issue of katha in their favour with respect to sites on 06.02.2003, OP.1 failed to accept their demand and failed to issue the katha. That is why complainant Smt.Jayanthi filed a W.P No.4527/2007 and complainant Smt.Komalamurthy filed Writ Petition No.4528/2007 before the Hon’ble High Court of Karnataka.<br /> <br /> 9. It is further contended by the complainants that the Hon’ble High Court of Karnataka was pleased to allow the Writ Petitions and issued direction to OP.1 to issue katha. But OP.1 failed to comply. That is why they filed contempt proceedings bearing No.607/2007 and No.670/2007 respectively. At the time of the said contempt proceedings OP.1 filed an affidavit stating that these respective sites No.80 and 81 are not approved by them in the approved sanction plan issued to OP.2. They do not form the part and parcel of the said layout which were alleged to have been sold by the OP.2 to these respective complainants. Then the said contempt proceedings were dropped. Documents to that effect are produced.<br /> <br /> 10. So on the perusal of the records documents and kind orders it is substantially proved and established by the OP.1 that the disputed sites bearing No.80 and 81 were never approved by them nor carved out of the said layout formed by the OP.2. OP.2 has taken the risk so also the complainants in purchase of the said sites which are not duly approved or released by the statutory authorities. For that OP.1 can’t be blamed. If OP.2 practiced some kind of fraud, it is for the complainant to proceed against OP.2.<br /> <br /> <br /> 11. We find some force in the defence of the OP.1 that complainants have not availed their services as contemplated under the Act. Though complainants are aware of the fact that their sites are not included in the said layout in pursuance of the affidavit filed by OP.1 and contempt proceeding being dropped but still they filed this complaint against OP.1. It is unfortunate. There is a clear cut abuse of process of law. Complainants to the reasons best known to them unnecessarily dragged OP.1 to this Forum.<br /> <br /> 12. Of course complainants have not sought for the refund of their sital value but they claimed compensation of Rs.20,00,000/- that too against OP.1 & 2 jointly and severally. When they are not allottee of site by the OP.1 how could OP.1 is responsible in paying them the compensation is not known. What is the basis for claiming such a huge compensation is also not known. In our considered view justice will be met by directing the OP.2 to refund the said sital value with interest and pay some compensation under the guidance value of the site as on today.<br /> <br /> 13. The evidence of the complainants has remained unchallenged. The non appearance of the OP.2 leads us to draw an inference that OP.2 admits all the allegations made by the complainants in toto. Though complainants invested their hard earned money to purchase a site of their choice in the year 1996 they are unable to reap the fruits of their investment for all these 12 years naturally they must have suffered both monetary loss and mental agony. It is all because of the unfair trade practice on the part of OP.2. Under such circumstances they deserves some relief against OP.2. With these reasons we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> Complaint Nos.1666/2008 and 1667/2008 are allowed in part.<br /> 1) In complaint No.1666/2008, OP.2 is directed to refund Rs.1,29,600/- together with interest at the rate of 15% p.a from January 1997 till realization and pay a compensation of Rs.2,00,000/- as a guidance value of the site as on today along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> Complaint against OP.1 is dismissed.<br /> <br /> 2) In complaint No.1667/2008, OP.2 is directed to refund Rs.1,29,600/- together with interest at the rate of 15% p.a from January 1997 till realization and pay a compensation of Rs.2,00,000/- as a guidance value of the site as on today along with litigation cost of Rs.1,000/- to the complainant.<br /> <br /> Complaint against OP.1 is dismissed.<br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> <br /> This original order shall be kept in the file of the complaint No.1666/2008 and a copy of it shall be placed in other respective file.<br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 14th day of October 2008.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> V.l.n* <br /> <br /> <br /> <br /> <br /> <br />